Hybrid courts, otherwise known as mixed courts, have been gaining popularity in the international judiciary in recent years and are often an appropriate solution to problems related to the settlement and adjudication of international crimes committed during armed conflicts of a regional nature, i.e., conflicts taking place within the borders of a particular state. The popularity of such courts may be rooted, inter alia, in the lack of a universally accepted international criminal court, as despite the formal existence of the International Criminal Court in The Hague, certain disputes and conflicts remain unresolved due to the failure of major international powers to sign the Rome Statute. The reluctance of some states to submit to the authority of this Court has significantly reduced its effectiveness and left a gap in the international judiciary.
At the same time, the creation of hybrid institutions was influenced by the various conflicts taking place throughout the 1990s. Due to the regional nature of the conflicts, the creation of hybrid institutions classified as the third generation of international criminal tribunals became an appropriate solution. However, the structure of the functioning of hybrid courts should not be overlooked. It has been pointed out that hybrid courts are the only ones among the judicial bodies that combine mechanisms of national and international law in a way that allows the inhabitants of post-conflict areas to build a relationship with the institution while controlling local authorities and administering justice. The issues identified above may also answer the question of why there has been an expansion of this type of judicial body.
The third generation of international criminal tribunals includes, inter alia, the Special Panel on Serious Crimes of the District Court of Dili in East Timor, the Special Court for Sierra Leone, the Extraordinary Chambers of the Courts of Cambodia, and the War Crimes Chambers of the State Court of Bosnia and Herzegovina.
The typology of international criminal courts adopted in the doctrine of international law is not uniform. Some representatives of the doctrine distinguish even eight generations of international criminal courts; in this division the Kosovo Specialist Chambers has been classified as a fifth-generation international criminal court. See J Rikhof, ‘The Notion: A History and Typology of International Criminal Institutions’ (2017) 1 In this article, only the Kosovo Specialist Chambers will be analysed without analysing the separate and independent body that is the Office of the Prosecutor. For the purposes of the article, the author will use the names: Kosovo Specialist Chambers (KSC) and the Specialist Chambers (the Chambers).
An analysis of the significance and specificity of Kosovo Specialist Chambers as a new hybrid judicial body and its potential impact on the development of international criminal justice cannot be carried out without first giving an overview of the history and background of the creation of the Specialist Chambers, together with highlighting the role of the European Union (EU) and the Council of Europe in their creation. In order to understand the uniqueness of this instrument in comparison with other organs of international judiciary, it is also necessary to bring closer the specificity of the subgroup of organs, which are the hybrid courts, together with distinguishing their characteristic features and then correlating them with Kosovo Specialist Chambers.
Presenting an analysis of the functional framework and the basis of functioning of Kosovo Specialist Chambers, and then comparing this body to the typical model of a hybrid court will allow us to conclude whether this relatively new legal instrument can be included in one of the subgroups of international criminal justice already distinguished in the doctrine (the previously mentioned third generation of international criminal tribunals), or whether it is a completely new hybrid court, the framework of whose functioning will affect the definition of a hybrid court existing so far in the doctrine of international law.
The establishment of Kosovo Specialist Chambers is intricately linked to the 1998–2000 armed conflict in the territory of Kosovo.
The armed conflict over Kosovo's independence between Serbs and Kosovo Albanians in the last years of the 20th century. It is estimated that the greatest intensity and development of the conflict occurred between 1998 and 2000 as a result of the start of activities by the armed guerrilla organisation, the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës). The United Nations Interim Administration Mission in Kosovo (UNMIK). See United Nations Security Council (UNSC) Res 1244 (10 June 1999): < Despite Kosovo's official proclamation of independence on 17 February 2008 and the recognition of the country by many UN members, UNMIK continues its work in Kosovo.
The responsibilities of the UN mission were partly taken over by the EU by establishing the European Union Rule of Law Mission in Kosovo mission
The Kosovo Force was a NATO international peacekeeping force, a mission created to restore security in the territory of Kosovo. The mission was established by Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ L 42, 16.2.2008) [92–98]. ibid section 3. Council Decision (CFSP) 2021/904 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (OJ L 197/114, 03.06.2021), section 1(3).
Of particular relevance in the context of the subsequent establishment of the Chambers appears to be the report of the Parliamentary Assembly of the Council of Europe on ‘Inhuman treatment and trafficking in human organs in Kosovo’
Inhuman treatment of people and illicit trafficking in human organs in Kosovo (Council of Europe's report), (Doc. 12462 07 January 2011) < Provision added by Section 1(1) of Decision No 2014/685/CFSP (OJ L 284/51, 29.09.2014) amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO. Council of Europe's report, section 1.
In September 2011, following up on the report, the Council of Europe issued a resolution
Council of Europe, Parliamentary Assembly Resolution 1782, Res. 1782 [2011]. Special Investigative Task Force (SITF). Section 162 of the Kosovo Constitution added by Kosovo Parliament's amendment of 3 August 2015 (No.05 -D-139,3 August 2015). Law on Specialist Chambers and Specialist Prosecutor's Office (Law No.05/L-053). Hereinafter referred to as the Statute.
The judicature and jurisprudence of public international law have not yet developed a unified hybrid court that considers all the specificities of this peculiar subtype of international tribunals. Moreover, the characteristics of these courts are interpreted from the connecting elements of current hybrid courts.
Sarah MH Nouwen, ‘Hybrid Courts: The Hybrid Category of a New Type of International Crimes Courts’ [2006] 2(2) Utrecht Law Review 192. Luigi Condorelli and Theo Boutruche, ‘Internationalized Criminal Courts: Are They Necessary?’ in CPR Romano, A Nollkaemper, and Kleffner (eds), Antonio Cassese; Italian lawyer, first President of the International Criminal Tribunal for the former Yugoslavia and first President of the Special Tribunal for Lebanon. Antonio Cassese,
Following the definition indicated above, it is necessary to stress that since hybrid courts are established in the territory of states affected by armed conflicts, civil wars, or dictatorships and are created to adjudicate on various violations of ibid.
Another reason justifying the establishment of internationalised courts to try crimes in these kinds of circumstances is the fear and apprehension of national judges to act against individuals suspected of genocide, war crimes, and other atrocities because of their own safety and the lack of adequate protection against the criminals.
Antonio Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in Romano, A Nollkaemper, and Kleffner (eds), In the case
In view of the above, it is believed that justice should be sought in international law by establishing appropriate mechanisms of international law, while at the same time making efficient use of domestic law mechanisms to ensure that the process of holding perpetrators accountable for their crimes is fully legitimate and effective.
Focusing on the international mechanisms used in the creation of such bodies, it is first necessary to mention the legal basis constituting these bodies. Past practice indicates that the impetus for the creation of hybrid courts was the reactions of the international community to various major conflicts taking place in the world. As part of the activities undertaken by the international community, acts were created that introduced appropriate changes and modifications to the local justice systems by establishing bodies that combine international and national elements. Such acts include, for example, the resolutions of the UN Security Council,
Security Council resolutions have created, e.g., the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Agreement between the UN and the Government of Sierra Leone and Statute of the Special Court for Sierra Leone, (Volume 2178, 1-38342), (16 January 2002) < Dorota Heidrich, ‘Przyszłość międzynarodowych trybunałów karnych ad hoc: strategie zakończenia oraz rozwiązania rezydualne, ze szczególnym uwzględnieniem Międzynarodowego Trybunału Karnego dla byłej Jugosławii’ [‘The Future of International Criminal Ad Hoc Tribunals: Completion Strategies and Residual Solutions, with Special Attention to the International Criminal Tribunal for the Former Yugoslavia’] Studia Europejskie [2013] 160.
Another international element may or may not be the law applied by hybrid courts, both substantive and procedural. After all, some violations of According to of the Law on the Establishment of the Extraordinary Chambers of the Courts of Cambodia (NS/RKM/1004/006), the Extraordinary Chambers shall apply Cambodian law when taking procedural actions. In case this law does not address a specific issue: there is ambiguity on how to interpret or apply a norm of Cambodian law, or there is inconsistency of the law with international standards. Then the solution should be sought at the level of international law standards < Statute of the Special Court for Sierra Leone, Volume 2178, 1-38342 [16 January 2002] 149 <
When examining the substantive law applied by hybrid courts, it cannot be overlooked that the subject matter jurisdiction of hybrid tribunals, like the tribunals themselves, is not uniform. Moreover, it is based on a peculiar mixture of the domestic law of the state concerned and the rules of public international law. The scope of acts to be judged by judges of internationalised tribunals is determined by laws or conventions of the states and international organisations constituting the court. Due to the universal acceptance by the international community of certain norms as norms whose violation is inadmissible (norms
The personal aspect of the structures of internationalised tribunals consists of both judges and staff from the countries on whose territory the international crimes took place and international staff. The shape of the personnel working within the hybrid courts is primarily influenced by the reasons for the establishment of such bodies. As already mentioned, hybrid courts are set up in post-conflict circumstances, i.e., in situations where state structures are often completely disintegrated or where there are only a handful of judges in the territory and, in addition, they do not have the experience to try serious crimes. In most cases, therefore, it has not been possible to set up bodies composed exclusively of citizens of the country in which the judicial body is being established. It also appears that the creation of purely international judgeships has been abandoned. This is mostly due to the possibility of insufficient legitimisation of personnel with only international roots in the eyes of the local community. After all, it may happen that international staff will not be able to fully understand and adapt their actions to the specificity of the community they will have to deal with.
Romano, ‘The Judges and Prosecutors of Internationalized Criminal Courts and Tribunals’ in Romano, A Nollkaemper, and Kleffner (eds.),
As a result of the above, and many other circumstances, the composition of hybrid courts is usually a mixed composition. Presumably, the international organisations that are one of the entities creating hybrid tribunals would insist on appointing only foreign judges, given the greater experience of such judges and the greater likelihood of respecting the norms of international law underlying the functioning of the body. However, the mixed composition of staff is not an accidental solution chosen when creating hybrid courts. Their specificity does not allow the composition of the judiciary to be devoid of both a local and an internationalised element. As Cesare Romano points out, ‘local judges and staff are essential to instil in the local community a sense of ownership of the justice sought on their behalf’
ibid. ibid. ibid.
When defining the nature of hybrid courts, the issue of their ad hoc nature cannot be overlooked. This is a feature that distinguishes them from distinct types of permanent bodies of international criminal law. The hybrid courts are not established to function permanently, as their purpose is not to replace the International Criminal Court. In the literature, the term ad hoc courts
An ad hoc court is a court set up to deal with a specific dispute. ibid. Nouwen (n 18) 211.
The establishment of the Kosovo Specialist Chambers would not have been possible without the continuous support of the Republic of Kosovo by the EU in the democratisation of the state and the reconstruction of structures. Discussions and conversations between the Kosovo authorities and representatives of the EU structures have been taking place for a long time to strengthen and achieve as fully as possible the objectives set by EULEX. The establishment of a separate judicial authority was achieved through the adoption by the Kosovo Parliament of the Law on the Ratification of the International Agreement between the Republic of Kosovo and the EU on the European Union Rule of Law Mission in Kosovo.
Agreement between the EU and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (EULEX KOSOVO 2008), (OJ L 292, 25.10.2008, 33–38). Special Investigative Task Forces. EULEX KOSOVO 2008, section 1(2) point 1-2. Law Nr 03/L-033: the Status, Immunities and Privileges of Diplomatic and Consular Missions and Personnel in Republic of Kosova, and of the International Military Presence and Its Personnel, (Law Nr 03/L-033 20 February 2008). Amendment of the Constitution of the Republic of Kosovo (No 05-D-139 3 August 2015).
Kosovo Specialist Chambers, together with the Special Prosecutor's Office, have legal capacity under Kosovo law and fully exercise its rights. The legal framework for the KSC legal personality derives from the constitutional regulations and the Statute of the Chambers, which established, inter alia, the competence to enter into agreements with other states, international organisations, or other entities.
Statute, section 4(1). ibid section 4(2). Constitution of Republic of Kosovo, s 18(1), June 2008 <
When analysing the hybridity of Kosovo Specialist Chambers, it is important to look at the law applicable by this court. The sources of law under which the Chambers operate and adjudicate are the Constitution of Kosovo, customary international law, international instruments protecting human rights, including, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, the Statute of KSC, and any provisions of Kosovo law
Statute, section 3(2).
Listing the Constitution of Kosovo as the most important source of law applied by the Chambers may have been inspired by the provision adopted by the Extraordinary Chambers of the Judiciary in Cambodia.
In the statute of this hybrid court, mainly Cambodian law supplemented by international law is indicated as the law applicable. Statute, section 3(3). ibid section 3(4).
The procedural matter concerning the manner in which the Chamber conducts its proceedings has been largely covered by a separate act, the Procedural and Evidentiary Rules before the Kosovo Specialised Chambers. This act specifies the scheme of conduct of proceedings, among other things, the rights of the accused, the process of making arrests and detentions. Passed by the judges of the Chambers under Article 19(1) of the Statute, it codifies the procedural rules applied by the Specialised Chambers (both the Trial Chambers and the Office of the Prosecutor). The Rules of Procedure and Evidence before the Specialised Chambers in Kosovo is an act that supplements the Statute with important practical issues, while remaining respectful of the provisions of the Statute. It was the intention of the judges to embody, both in the Statute and in the aforementioned Act, the highest standards of international human rights developed both within the Council of Europe and the UN. In particular, it should be presumed that the injunction to observe the highest standards of international human rights in Article 19(1) of the Statute is inspired by, among others, the already famous Article 6 of the European Convention on Human Rights, which set the standard of a fair trial.
The scope of temporal and territorial jurisdiction is limited to crimes initiated and committed on the territory of Kosovo between 1 January 1998 and 31 December 2000.
Statute, section 7-8. ibid section 1. ibid section 13-14. ibid section 6(2).
The personal jurisdiction of the Specialised Chambers is limited to natural persons holding Kosovar citizenship, or as stated precisely in the Statute, persons holding citizenship of the Federal Republic of Yugoslavia.
Statute, section 9.
Still remaining with the jurisdiction of the Chamber, it is worth pointing out the provision in the Statute of the Special Chambers that it is not possible to invoke immunity Immunity Statute, section 16. The Residual Special Court for Sierra Leone Agreement (Ratification) Act, s 6, (Vol CXLIII, No 6, 9 February 2012) < The latest reflections in this regard are included in Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, by Concepción Escobar Hernández, Special Rapporteur <
An important aspect in the context of the subject matter jurisdiction of the Kosovo Specialist Chambers is their superiority over any other Kosovo court.
Statute, section 10(1). ibid section 11.
The concept of shaping the jurisdiction of the Chambers in the described manner seems to use the most prominent solutions contained in the statutes of the already existing hybrid courts. Particularly noteworthy is the extension of the Chambers’ jurisdiction to crimes committed by state officials in the line of duty and the lack of entitlement of these persons to invoke immunity for their defence in proceedings before the Chambers. Bearing in mind the long-standing reflections of the doctrine of international law on the immunity of the state (including the highest state officials) in the field of international crimes, it should be pointed out that every attempt to legally regulate this problem contributes to strengthening the practice of the subjects of international law. It is not unlikely that the shaping of the scope of subject matter jurisdiction in this way will in the future become a universal model for a new generation of judicial bodies.
Turning to the organisational structure of the Kosovo Specialist Chambers, it is necessary to indicate that the Kosovo Specialist Chambers are composed of the following chambers: the Ordinary Trial Chamber, the Appeals Chamber, the Supreme Court Chamber, and the Constitutional Court Chamber.
ibid section 4(1). ibid section 3(5). Statute, section 34. ibid section 3(6).
Judges appointed to serve as a judge to one of the Chambers are selected from the official Roster of International Judges. This list is compiled by an independent Qualification Commission composed of three members of international origin, including two judges with experience in international criminal law.
ibid section 28(2). ibid section 26(2). ibid section 29. ibid section 25 (1). ibid section 30(3).
A positive aspect of the structure of the Kosovo Specialist Chambers thus adopted is, primarily, the authority of the Chambers to move their seat. It is usually suggested in the literature that the majority of judicial bodies of this type have their seat on the territory of former conflicts, which favourably influences the active participation of injured parties in the process of restoring state structures and the realisation of judicial proceedings. The disadvantage of this solution may be the high probability of influence of potential perpetrators on the course of proceedings. In connection with this, the possibility of transferring the seat to another country seems reasonable, since protecting the independence of judges and the efficient course of proceedings should be a priority for every judicial body.
While the complete exclusion of local judges from the Roster of International Judges is incomprehensible, in jurisprudence, the inclusion of local judges in the structures of hybrid courts is assessed positively due to the previously mentioned sense of wielding justice that is administered to criminals. Consequently, the lack of judges of Kosovar origin may in the future affect the legitimacy of this judicial body and hinder the procedure in further legal proceedings.
Contemplating the hybridity in the international judiciary and the structures of the Kosovo Specialist Chambers, it should be concluded that this body is a hybrid court in its most modern variant. This thesis is supported by the fact that it is not easy to integrate KSC into the already well-established doctrinal standards to which earlier hybrid courts usually conformed. In particular, the Kosovo Specialist Chambers go beyond the formed patterns already at the level of the founding instruments. The establishment of the Chambers on the basis of the Constitution of Kosovo and domestic law (taking into account the agreement between Kosovo and the EU) leads some scholars to claim that they are an internationalised national court.
Robert Muharremi, ‘The Kosovo Specialist Chambers and Specialist Prosecutor's Office’ (2016) 76 HJIL 991 <
The hybridity of the Kosovo Specialist Chambers is also reflected in the jurisdiction of this body, which is a compilation of crimes that are the most serious crimes of international and domestic law. The scope of subject matter jurisdiction shaped in this way corresponds to the already formed model of jurisdiction of hybrid courts. Consider the narrow temporal and territorial scope of the KSC jurisdiction, which is limited to the armed conflict taking place in the territory of present-day Kosovo in 1998–2000; as a result, the construction of the KSC mandate does not differ from that of hybrid courts established in the past.
Some doubts about the hybrid nature of the Kosovo Specialist Chambers may be raised by the placement of the Constitution of Kosovo at the top of the list of sources of law under which the judges rule. However, the elevation of the Constitution of Kosovo to a pedestal does not limit the influence of wider international law on the decisions taken by the judges of the Chambers. Thus, judges are also obliged to rule on the basis of international custom, which should be interpreted as a broad reference to past developments in international criminal and human rights law. One cannot fail to mention the inclusion in the basis for judgements of the most eminent judicial bodies such as the International Court of Justice, which argues against the concept of a local judicial body ruling solely on the basis of national sources of law. Moreover, as indicated in the Statute, it takes precedence over all other national laws. Other provisions of national law apply only where this is permitted by the Statute of the Chambers.
The hybrid nature of the Kosovo Specialist Chambers may also be undermined by the staffing of this body exclusively with judges from outside Kosovo. The rejection of the concept of mixed composition of judges stands in opposition to the existing standards already in place in the structures of most hybrid courts, where national judges sit alongside judges of international origin. Although the Statute does not indicate the motives behind the adoption of such a solution, it seems that the circumstances under which the Chambers were established and the likely shortcomings in the personnel sphere (lack of judges of Kosovan origin with relevant experience) support the validity of the solution adopted within the Kosovo Specialist Chambers.
Furthermore, the location of the Chambers’ headquarters outside Kosovo slightly detracts from the hybrid nature of this body. Nevertheless, the circumstances of the choice of Hague as the seat of the Chambers justify this choice. Choosing Hague as the seat was possible because of the Statute's provisions regarding the possibility of locating the Chambers in another country
Statute, section 3(6). The transfer to The Hague was made pursuant to Sections 2 and 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Kosovo concerning the Hosting of the Kosovo Relocated Specialist Judicial Institution in the Netherlands (February 2016) < In the past, Kosovo elites have made several attempts to discredit the Chambers and have intimidated witnesses. Read more in an article by Hajdari Una, ‘Welcome to Kosovo's Judicial Battleground,’ <
Turning to the last component that characterises hybrid courts, i.e., their ad hoc nature, it should be pointed out that the distinctive nature of the operation of the KSC argues for a strong rejection of the thesis that it is exclusively a national court and favours its classification into the subgroup of hybrid courts. The Statute does not strictly distinguish the period of time for which the Chambers were established. It can therefore be presumed that the Chambers’ mandate was established for the duration of the proceedings and activities related to the Chambers’ statutory tasks. Consequently, the Chambers will be dissolved after the fulfilment of their statutory objectives.
Statute, section 1(2).
Summarising the considerations, the Kosovo Specialist Chambers should not be perceived as a national court, as well as an international court, as the specificity of shaping the framework of the functioning of this body does not justify it. Therefore, it will be appropriate to include this court in the new generation of hybrid courts, drawing the best from the achievements of the hybrid courts already established, while eliminating and limiting solutions that did not function properly in the past.
In theory, the solutions adopted in shaping the framework for the operation of the Chambers should, in the long term, lead to the strengthening of transitional justice procedures and restore structures on the ground in Kosovo that were destroyed during the conflict. However, as with many hybrid courts, the Kosovo Specialist Chambers face a great deal of judgement. Criticisms of the Chamber's activities have been voiced from Pristina. The main criticisms directed at the Chambers are the questionable legitimacy to act, according to some, and the lack of, or insufficient action.
Transitional justice refers to procedures implemented in response to massive human rights violations in post-conflict regions.
The problem of the legitimacy of hybrid courts is not something foreign to the doctrine of international law. Due to the particular suspension between tribunals operating solely on international law mechanisms and national and local courts, hybrid courts will always be confronted with high expectations of the local community on the one hand and will be obliged to submit to the requirements of independence and autonomy on the other. Despite the need and desire to restore justice to victims, dissenting voices have also resounded, accusing the Chambers of wanting to diminish the role of defendants in the liberation of Kosovo.
Problems with the legitimacy of the Kosovo Specialist Chambers are addressed, among others, by Hehir Aidan in ‘Lessons Learned? The Kosovo Specialist Chambers’ Lack of Local Legitimacy and Its Implications’ [2019] Human Rights Review, 20. 10.1007/s12142-019-00564-y, 269. Stephanie Van Den Berg,
Among other things, the KSC is also accused of taking too long to proceed without spectacular results, given that it has been operating since 2015. Currently, the Chambers have issued four indictments against prominent figures associated with the Kosovo Liberation Army,
Kosovo Liberation Army. Van Den Berg (n 76).
Both of the above-mentioned issues will have an impact on the position of the Kosovo Specialist Chambers in the broader international judiciary (including hybrid courts). Given the proceedings already undertaken, it will be necessary to wait and closely monitor further activities to fully assess the results of the Chambers’ activities and their impact on the development of international judicial mechanisms.